S. 1151 — Accountability Through Electronic Verification Act

This section designates the Act as the “Accountability Through Electronic Verification Act” and sets forth its table of contents.

This section permanently reauthorizes a pilot program for employment eligibility confirmation (established under section 401 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996) by striking the provision requiring the Secretary of Homeland Security to terminate it on September 30, 2015 (unless Congress otherwise provides). (As background, the program allows participating employers to verify new hires' work authorization using federal databases maintained by DHS and SSA; it is the predecessor to E-Verify.)

This section mandates E-Verify participation (i.e., an internet-based system operated by DHS allowing enrolled employers to electronically confirm the employment eligibility of newly hired employees against DHS and SSA records) for (1) all federal executive departments and agencies; (2) any person, employer, or entity entering a federal contract; and (3) employers and classes of employers designated by the Secretary of Homeland Security as critical to homeland or national security, with designations published within 7 days of enactment and required participation within 30 days thereafter. The section further requires all U.S. employers to participate in E-Verify for all recruited, referred, or hired employees one year after enactment, including certification that all parties to contracts, subcontracts, or labor exchanges use E-Verify (with non-certification deemed a violation); provides for interim mandatory participation with 14 days' notice for any employer or class of employers the Secretary has reasonable cause to believe violated 8 U.S.C. 1324a (i.e., unlawful employment of unauthorized aliens). (Thus, this expands E-Verify from its prior limited, voluntary, or state-specific federal use to nationwide mandatory use in phases.)

This section establishes consequences for failing to participate in E-Verify—treated as a violation of the Form I-9 requirement under INA §274A(a)(1)(B) (8 U.S.C. §1324a(a)(1)(B)) with a rebuttable presumption of knowingly hiring an unauthorized alien under §274A(a)(1)(A)—and increases civil and criminal penalties for related employment verification violations. Specifically, it revises civil penalties under §274A(e) as follows: (1) for knowingly hiring or continuing to employ unauthorized aliens [§274A(e)(4)(A)], to $2,500-$5,000 for a first offense (from $250-$2,000), $5,000-$10,000 for a second offense (from $2,000-$5,000), and $10,000-$25,000 for subsequent offenses (from $3,000-$10,000), while authorizing other remedial actions [§274A(e)(4)(B)]; (2) for paperwork violations [§274A(e)(5)], to $1,000-$25,000 (from $100-$1,000), eliminating consideration of business size and deeming E-Verify misuse or false information as a knowing hire violation under §274A(a)(1)(A); (3) permits good-faith penalty waivers or reductions [new §274A(e)(10)]; and (4) authorizes debarment from federal contracts, grants, or agreements for repeat violators of knowingly hiring provisions or those convicted under this section [new §274A(e)(11)], with placement on the excluded parties list, agency notifications, and waiver options. It also increases criminal penalties for a pattern or practice of such violations [§274A(f)(1)] to a fine of up to $30,000 per unauthorized alien and imprisonment of 1-10 years and transfers related enforcement authority from the Attorney General to the Secretary of Homeland Security [§274A(f)(2)].

This section establishes limitations on state and local authority regarding E-Verify (i.e., the federal electronic system operated by DHS and SSA for confirming the employment eligibility of individuals). (1) It preempts any state or local prohibition on a person or entity using E-Verify to verify the employment authorization of new hires or current employees. (2) It provides that E-Verify participants are not liable under federal, state, or local law for any employment-related action—such as wrongful termination—taken in good faith reliance on E-Verify information.

This section revises E-Verify requirements (i.e., DHS-operated internet system allowing enrolled employers to confirm employment eligibility of hires by matching Form I-9 data against federal records) as follows: (1) permits employers to verify prospective employees through E-Verify prior to hiring, recruitment, or referral if the individual consents, and requires compliance with specified procedures—including private written notice, contest rights, and no adverse action—for tentative nonconfirmations; (2) requires employers to verify newly hired, recruited, or referred individuals through E-Verify not later than three days after such action; and (3) requires the Secretary of Homeland Security, not later than one year after enactment of the Accountability Through Electronic Verification Act, to mandate that all employers use E-Verify for existing employees not previously verified by the employer.

This section requires each person or other entity participating in E-Verify (i.e., the DHS electronic system allowing employers to confirm new hires' employment eligibility against federal databases) to reverify, using the E-Verify confirmation system, an individual's work authorization not later than 3 days after the date such authorization is scheduled to expire (as indicated by DHS or documents provided pursuant to INA §274A(b) (8 U.S.C. §1324a(b))). Reverifications must follow procedures in the applicable subsection and section 402.

This section amends E-Verify employment eligibility verification requirements (under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996) as follows: (1) requires employers receiving a final nonconfirmation to immediately terminate the individual's employment, recruitment, or referral and submit related information to DHS to aid immigration enforcement, and creates a rebuttable presumption of violating INA section 274A (8 U.S.C. 1324a) if employment continues; and (2) requires the USCIS director to submit weekly reports to the ICE director on final nonconfirmations, including the individual's name, Social Security number or alien file number, current employer contact information, and other details deemed appropriate, with DHS using the information for immigration enforcement. (E-Verify is a DHS-operated electronic system allowing enrolled employers to confirm new hires' eligibility against federal records.)

This section directs the Commissioner of Social Security, Commissioner of Internal Revenue, Secretary of Homeland Security, and Secretary of the Treasury to jointly establish, no later than one year after enactment, a program to share information among such agencies—including no-match letters (i.e., notices of Social Security number mismatches) and earnings suspense file data (i.e., unmatched wage reports)—that may identify unauthorized aliens (as defined in 8 U.S.C. 1324a(h)(3)). (Thus, the program supports enforcement of prohibitions on hiring or continuing to employ unauthorized aliens.)

This section directs the Secretary of Homeland Security to submit to Congress, not later than nine months after enactment, a report containing recommendations for (1) modifying and simplifying the Form I-9 process by which employers must verify and document the employment eligibility of new hires pursuant to the Immigration and Nationality Act (8 U.S.C. 1324a), and (2) eliminating that process.

This section revises the requirements for the design and operation of E-Verify (i.e., the DHS-operated internet-based system that allows enrolled employers to confirm the employment eligibility of newly hired individuals by matching I-9 data against federal records). E-Verify shall be designed and operated (1) to maximize its reliability and ease of use by employers; (2) to insulate and protect the privacy and security of the underlying information; (3) to maintain appropriate administrative, technical, and physical safeguards to prevent unauthorized disclosure of personal information; (4) to respond accurately to all employer inquiries on employment authorization; (5) to register any time when E-Verify is unable to receive inquiries; (6) to allow for auditing use of the system to detect fraud and identity theft; (7) to preserve the security of the information by developing and using algorithms to detect potential identity theft and misuse, developing capabilities to detect anomalies indicating fraud or misuse, and auditing documents and information submitted by potential employees (including authority to conduct interviews with employers and employees); (8) to confirm identity and work authorization through verification of records maintained by the Secretary of Homeland Security, other federal departments, states, the Commonwealth of the Northern Mariana Islands, or U.S. outlying possessions—including Social Security Administration records, state vital statistics records, Department of State passport and visa records (including photographs), and state driver's license or identity card information (including photographs)—as determined necessary by the Secretary; (9) to electronically confirm the issuance of the employment authorization or identity document; and (10) to display the digital photograph from the document issuer for employer comparison (or, if no photograph is available, to provide a temporary alternative procedure specified by the Secretary).

This section amends the federal identity theft statute (18 U.S.C. 1028)—(1) in subsection (a)(7), by revising the prohibition on knowingly transferring, possessing, or using without lawful authority a means of identification from "of another person" to "that is not his or her own"; and (2) in subsection (b)(3), by adding as an aggravating factor offenses committed to facilitate or assist in harboring or hiring unauthorized workers in violation of specified Immigration and Nationality Act provisions (8 U.S.C. 1324, 1324a, 1324c). (Thus, such identity theft offenses are punishable by up to 20 years imprisonment (from 15 years).)

This section directs the Director of U.S. Citizenship and Immigration Services (USCIS) to establish, not later than nine months after enactment of the Accountability Through Electronic Verification Act, a demonstration program to assist small businesses in rural areas or areas without internet capabilities to verify the employment eligibility of newly hired employees using publicly accessible internet terminals. (Thus, the program supports participation in the Basic Pilot Program—now known as E-Verify—for employers lacking private internet access.)

This section establishes the Employer Compliance Inspection Center within Homeland Security Investigations of U.S. Immigration and Customs Enforcement (ICE). The Center is to promote a culture of compliance among U.S. businesses with employment eligibility verification requirements (i.e., Form I-9) through centralized worksite enforcement audits, standardized penalties, and related investigations; ensure adherence to relevant laws; respond quickly to employer inquiries; and form an interagency task force with the Social Security Administration, U.S. Citizenship and Immigration Services, Department of Labor, and Internal Revenue Service to investigate crimes such as Social Security fraud, tax fraud, and wage and hour violations.